L and M (Children), Re

In care proceedings alleging non-accidental injury, the local authority bears the burden of proof on the balance of probabilities. Findings must rest on evidence and proper inferences, assessed across the whole evidential canvas rather than on suspicion or speculation.

Expert opinion must be evaluated with all other evidence, and the court must consider whether an injury may have an unknown cause. That possibility does not alter the burden or standard of proof. A carer’s lies require careful assessment because they may arise from fear, shame, panic or misplaced loyalty.

The court may find injuries non-accidental without identifying their precise mechanism or perpetrator. Inclusion in a pool of possible perpetrators requires a likelihood or real possibility; identifying a particular perpetrator requires proof on the balance of probabilities.

A six-month-old child was found to have several rib fractures and complex skull abnormalities. Care proceedings followed under the Children Act 1989. At an earlier fact-finding hearing, the county court found that the injuries were non-accidental and that both parents remained possible perpetrators.

The Court of Appeal allowed the parents’ appeal in Re M (Children) [2012] EWCA Civ 1710. It held that the earlier judge had not adequately explained her conclusion when the medical experts regarded the child’s presentation as unprecedented, inexplicable and baffling. A retrial was ordered before a judge of the Family Division.

At the retrial, further neuroradiological evidence suggested that several features previously classified as skull fractures were accessory sutures or fissures. The principal issues were the nature and cause of the injuries, whether they were accidental, and whether either parent could be identified as their perpetrator.

1. Fact-finding conclusions. The local authority proved on the balance of probabilities that the child sustained four skull fractures and fractures of the left fifth, sixth and posterior eighth ribs non-accidentally while in the care of one or both parents. The parents’ account that the skull and eighth-rib injuries resulted from a fall on 2 August was rejected. Both parents had concealed information and given false or misleading accounts. The precise incident or incidents could not be identified, nor could the court determine which parent caused the injuries. It was probable that one parent caused them and the other knowingly withheld information to protect that parent.

2. Approach to proof. The burden remained throughout on the local authority and the standard was the balance of probabilities. Findings had to be founded on evidence and proper inferences, not suspicion or speculation. Each item of evidence had to be evaluated in the context of the whole evidential canvas. Expert opinions were important but remained distinct from the judicial function of weighing all the evidence and reaching the final decision.

3. Unknown causation and credibility. Applying R v Cannings [2004] EWCA 1 Crim, R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126 and Re R, Care Proceedings Causation [2011] EWHC 1715 (Fam), the possibility of an unknown medical cause had to be considered. It did not change the burden or standard of proof. Applying R v Lucas [1981] QB 720, the parents’ lies did not automatically establish that all their evidence was false. Their possible fear of renewed social-services involvement was considered, but the accumulated inconsistencies and medical evidence demonstrated that their account of the material injuries was untrue.

4. Medical conclusions. On the further expert evidence, several skull lucencies were accessory sutures rather than fractures. The child had four skull fractures and probable mechanical fragility associated with an unusual number of fissures and accessory sutures. The most likely explanation was an “eggshell skull” which absorbed the impact. Skull fractures could occur without brain damage, resolving much of the earlier medical conundrum. The absence of expected signs of pain remained unexplained.

5. Expert evidence. The amended rule 25.1 of the Family Procedure Rules restricts expert evidence to that necessary to resolve proceedings. In difficult non-accidental-injury cases, evidence from several disciplines may nevertheless remain necessary. Court-appointed experts of sufficient calibre and experience play a vital role where the medical evidence is unusual or outside treating doctors’ experience.

1. Court of Appeal: In Re M (Children) [2012] EWCA Civ 1710, the parents’ appeal was allowed. The original findings were vitiated by the failure to explain how non-accidental injury had been established despite the experts describing the presentation as inexplicable. A retrial before a Family Division judge was ordered.

2. High Court, Family Division: At the retrial, the court made fresh findings that the skull and rib fractures were inflicted non-accidentally while the child was in the care of one or both parents.

3. Swindon County Court: HHJ Marshall had found that the injuries were non-accidental and that both parents remained within the pool of possible perpetrators. Those findings were subsequently set aside on appeal.